Since today is the two-year anniversary of Bush sending his first batch of judicial nominees to the Senate for approval, the White House is marking the occasion with a new round of political events aimed at pressuring Senate Dems to either drop the filibusters of Bush’s most extreme nominees, agree to permanent changes to Senate rules pertaining to filibusters, or both.
At the outset, it’s important to reiterate that the Republicans’ gripes about the Dems “obstructing” Bush’s attempts to fill judicial vacancies are deceptive and misguided. Not only did the GOP block dozens of Clinton nominees without cause, but they did so in far greater numbers than Democrats are now.
To hear the president tell it, Dems are refusing to allow the Senate to vote on any of Bush’s many qualified nominees. The truth is, as the Washington Post’s E.J. Dionne noted today, the Senate has confirmed 22 appeals court nominees and 101 district court nominees since Bush’s inauguration. Two of Bush’s proposed judges have generated filibusters, and two filibusters does not a crisis make.
In the interests of fairness, it’s fair to say both sides have conveniently forgotten about the arguments each were using just a few years ago. Republicans are now saying it violates the Constitution for a Senate minority to use a filibuster to block a presidential nominee, though it’s a tactic Senate Republicans have used on multiple occasions. Meanwhile, when Republicans were in the Senate minority during the first two years of the Clinton administration, Clinton’s White House counsel made the same argument about the illegality of filibusters that Bush’s supporters are making now.
Nevertheless, Article I, Section 5 of the Constitution allows Congress to “determine the rules of its proceedings,” and since 1806, a devoted minority in the Senate could filibuster any vote, challenging his or her colleagues to muster 60 votes to stop it.
Both sides feel like they have little choice. Senate Dems know if Bush is given the opportunity, he’ll stack the courts with right-wing ideologues and reshape the federal judiciary. Simultaneously, Republicans will be rewarded for stalling on Clinton’s nominees, “running out the clock” on his administration. Republicans, meanwhile, have the White House, a congressional majority, and a strong desire to get their ideological brethren on the federal bench. They can’t seem to override the Dems’ two current filibusters, there’s nothing stopping Dems from using filibusters on future nominees, so the GOP is left to consider rewriting all the rules of the game.
Bush delivered a speech from the Rose Garden today calling it a “disgrace” that the Senate hasn’t voted on all of his initial judicial nominees yet.
The White House has even taken to fibbing about the nature of the process. During a briefing last week, White House Press Secretary Ari Fleischer said, “The Senate has a constitutional responsibility to hold an up or down vote on all judicial nominees within a reasonable amount of time.” This is complete nonsense. The Constitution says the Senate has an obligation to “consent” to the president’s nominees, but it says nothing about requiring a vote nor does it say a word about the time frame under which senators must take action.
A new phrase is being thrown about called “filibuster reform.” Because the Democrats are showing some backbone for a change, and they’ve decided to use the limited power they have to block two nominees, Republicans are so enraged they’re considering a complete overhaul to the system they themselves were taking advantage of in the recent past.
With this in mind, there are several proposals on the table to “fix” the current system.
* The Chambliss/Graham lawsuit — Easily the most absurd of the proposals, Sens. Saxby Chambliss (R-Ga.) and Lindsey Graham (R-S.C.) want to sue the Senate to stop anyone from filibustering presidential nominees. This is a non-starter.
* The Schumer Plan — Sen. Chuck Schumer (D-N.Y.) is willing to humor Senate Republicans and agree the process could use an overhaul. He’s therefore proposed the creation of a new bipartisan nominating commission that would eliminate the partisanship of the process. Under the Schumer plan, both parties would work to find moderate, centrist judges as recommended by a new commission made up of equal numbers of Dems and Republicans. The far left and the far right wouldn’t get to back the knee-jerk ideologues, but the consensus choices, Schumer argues, would sail through the Senate without opposition. Republicans have not commented much on the Schumer Plan, I suspect because they hate it but can’t figure out why.
* The Frist Plan — Sen. Majority Leader Bill Frist (R-Tenn.) has proposed changing the Senate rules so that a vote on any presidential nominee could be forced within two weeks of the president’s announcement. Under the Frist plan, the first vote to break a filibuster would need the support of 60 senators, just like now, but the second would need 57 votes, the third 54 votes, and the fourth 51 votes — a simple majority. That way, even if there was a filibuster, it couldn’t last indefinitely because within a two-week period the majority could win outright. That may sound all right to the GOP now, and the plan has received some tacit support from the White House, but I wonder how many Republicans will want this tool to be available to Democratic presidents in the future? After all, if it applies to their guys, it’ll apply to our guys.
* The Bush Plan — Similar to the Frist Plan, Bush unveiled a proposal last fall to require “timely up or down votes on judicial nominations both now and in the future.” This proposal would ask sitting judges to inform the White House of their intention to retire, prompting the administration to nominate a replacement within 180 days, and would also force the Senate to vote on every nominee within six months. Bush pushed the plan, and conservatives in the media applauded it when first introduced, but no one has taken up the cause on the president’s behalf.
* The Hatch “Nuclear” Plan — Sen. Orrin Hatch (R-Utah) has indicated that he might use an unprecedented tactic to undo Dems’ filibusters — a parliamentary trick that would undo the Senate rules that allow filibusters of any presidential nominee. Republicans on the Hill are calling it the “nuclear” option.
Though I’m no expert in the parliamentary rules of the Senate, as I understand it, Republicans would bring a judicial nominee to the floor; if a Democrat rose to begin a filibuster, Republicans would ask the chair (a member of the majority party leading the Senate at the time) for a ruling that filibusters do not apply to presidential nominations. If the chair ruled in the affirmative, Democrats could overturn the chair’s ruling with a majority, but with 48 votes, they’d be stuck. As The Hill reported this week, there are two flaws in the plan: the move would “destroy whatever is left of the working relationship between Democrats and Republicans” and the GOP knows that if they tried it, Democrats would use the same trick in the future. Nevertheless, Hatch seems serious about it, telling The Hill that he “know[s] how to break [the Democrats’ filibusters], and I will when the time comes.”
Aren’t you glad we’ve got a president who is as a “uniter, not a divider” and has extensive experience “bringing Republicans and Democrats together”? Yeah, so am I.